other proceedings involving detainees, and who will operate under appropriate nondisclosure

obligations. Once authorized, the Filter Team will identify documents relevant to the ongoing

investigation such that any relevant but potentially privileged materials will remain privileged

pending the Court’s consideration of privilege issues with respect to those materials.

For the reasons explained below, the Court should authorize the inclusion of attorney-

client communications in the review of detainee materials by the Filter Team. Furthermore,

2

given that the ongoing investigation pertains to the safety and security of detainees and personnel

at Guantanamo Bay and should be permitted to proceed expeditiously, the Court is requested to

require that petitioners file any response to this motion within ten (10) calendar days, i.e., July

17, 2006, with respondents’ reply due July 21, 2006.3

2

The ongoing NCIS investigation will involve review of materials of all Guantanamo

Bay detainees, except those who have been classified as no longer enemy combatants
(“NLECs”). Accordingly, respondents are filing this motion in all of the pending Guantanamo
detainee habeas cases, including those currently on appeal, with the exception of the four cases
that exclusively involve NLECs. See Qassim v. Bush, 05-CV-497 (JR); Mamet v. Bush, 05-CV-
1886 (EGS); Zakirjan v. Bush, 05-CV-2053 (HHK); Muhammed v. Bush, 05-CV-2087 (RMC).
A fifth case – El-Mashad v. Bush, 05-CV-270 (JR) – involves both enemy combatant and NLEC
detainees, thus the motion in that case is directed only with respect to the enemy combatant
detainees (Adel Fattouh Aly Alhmed Algazzar and Sherif El-Mashad).

3

This motion is without prejudice to respondents’ position that the Court lacks

jurisdiction in these cases, aside from Hamdan v. Rumsfeld, No. 04-CV-1519 (JR), in light of the
Detainee Treatment Act of 2005, Pub. L. No. 109-148, tit. X, 119 Stat. 2680 (“the Act”). The
Act, among other things, amends 28 U.S.C. § 2241 to eliminate court jurisdiction to consider
habeas petitions and other claims by aliens held as enemy combatants at Guantanamo Bay, id.
§1005(e)(1), and to create an exclusive review mechanism in the D.C. Circuit to address the
validity of the detention of such aliens and final decisions of any military commissions, id.
§ 1005(e)(1), (e)(2), (e)(3). Section 1005(e)(2) of the Act states that the D.C. Circuit “shall have
exclusive jurisdiction to determine the validity of any final decision of a Combatant Status
Review Tribunal that an alien is properly detained as an enemy combatant,” and it further
specifies the scope and intensiveness of that review. While the Supreme Court in Hamdan, held
that § 1005(e)(1) did not apply to habeas petitions pending prior to the enactment of the Act, it
recognized that the exclusive review provisions of the Act did expressly apply to cases pending

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Case 1:05-cv-01429-UNA Document 41 Filed 07/07/2006 Page 11 of 32

BACKGROUND

On June 10, 2006, three detainees at the U.S. Naval Base at Guantanamo Bay, Cuba, were

found in their cells, each apparently having committed suicide using torn bedsheets as ligatures

Suicide, at http://www.defenselink.mil/news/Jun2006/20060610_5379.html. These suicides

prior to enactment. See Hamdan v. Rumsfeld, 548 U.S. ---, slip op. at 7-20 (U.S. June 29, 2006).
While the petitioner in Hamdan escaped the Act by virtue of the fact that his challenge did not
involve a final decision of a military commission within the exclusive jurisdiction of the Court of
Appeals under § 1005(e)(3), the Court reserved the question of the effect of the exclusive review
provisions of the Act on other cases, stating that “[t]here may be habeas cases that were pending
in the lower courts at the time the DTA was enacted that do qualify as challenges to ‘final
decision[s]’ within the meaning of subsection (e)(2) or (e)(3). We express no view about
whether the DTA would require transfer of such an action to the District of Columbia Circuit.”
Hamdan, slip op. at 18 n.14. The cases at bar, aside from Hamdan, are just such cases, i.e.,
challenges to petitioners’ designation as enemy combatants through Combatant Status Review
Tribunals, and given the Act’s investment of exclusive review in the Court of Appeals, the
District Court lacks jurisdiction over the cases for it is well-settled that an exclusive-review
scheme, where applicable, precludes the exercise of jurisdiction under more general grants of
jurisdiction, including habeas corpus. Cf., e.g., 5 U.S.C. § 703 (“form of proceeding for judicial
review is the special statutory review proceeding relevant to the subject matter in a court
specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action,
including actions for . . . writs of . . . habeas corpus”); Thunder Basin Coal Co. v. Reich, 510
U.S. 200, 207-09 (1994) (“exclusive” jurisdiction under federal Mine Act precludes assertion of
district court jurisdiction); FCC v. ITT World Communications, Inc., 466 U.S. 463, 468 (1984)
(Hobbs Act) (“The appropriate procedure for obtaining judicial review of the agency’s
disposition of these issues was appeal to the Court of Appeals as provided by statute.”); Laing v.
Ashcroft, 370 F.3d 994, 999-1000 (9th Cir. 2004) (“§ 2241 is ordinarily reserved for instances in
which no other judicial remedy is available”); Lopez v. Heinauer, 332 F.3d 507, 511 (8th Cir.
2003) (“Because judicial review was available . . . the district court was not authorized to hear
this § 2241 habeas petition.”). See also Telecommunications Research and Action Center v.
FCC, 750 F.2d 70, 77 (D.C. Cir. 1984) (“even where Congress has not expressly stated that
statutory jurisdiction is ‘exclusive’ . . . , a statute which vests jurisdiction in a particular court
cuts off original jurisdiction in other courts in all cases covered by that statute”) (footnote
omitted); id. at 75, 78-79 (request for relief in district court that might affect Court of Appeals’
future, exclusive jurisdiction is subject to the exclusive review of the Court of Appeals).

The effect of the Hamdan decision on this Court’s jurisdiction is pending before the

Court of Appeals, and respondents have requested supplemental briefing on the subject.

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Case 1:05-cv-01429-UNA Document 41 Filed 07/07/2006 Page 12 of 32

followed an incident less than a month before (on May 18, 2006) in which two detainees

overdosed on medications that they had illicitly hoarded during medical treatment and responses

Kisthardt Decl. ¶ 3. That search uncovered notes found in a living detainee’s cell that, once

translated, appeared to have been written by at least two of the deceased detainees and, thus, were

relevant to the NCIS investigation. These notes were hand-written, in Arabic, on stationery that

had been stamped as confidential attorney-client materials. Id.

The discovery of these materials led the NCIS to expand its investigatory efforts to

include all materials in all enemy combatant detainees’ cells, in order to investigate fully the

circumstances surrounding the deaths of the three detainees and to determine whether other

suicides were planned or likely to be planned. Id. ¶ 3. On or about June 14, 2006, the NCIS

5

impounded detainees’ written materials, most of which were contained in the plastic bins in

which detainees are permitted to store their personal items and papers, including any legal

material and other correspondence. See id. (Detainees’ Korans and the like were not

6

impounded.) Approximately 1,100 pounds of materials were collected, much of which was

5

Documents of the three remaining detainees who have been classified as no longer

enemy combatants have not been impounded and are not currently the subject of investigation.
See supra note 2.

6

Typically, detainees who are housed in cells are limited in the amount of material they
may have in their cells at any particular time; thus, the plastic bins are kept outside a detainee’s
cell, and the detainee may request items from the bin, and return items to the bin, through the
guards on duty in the cell block. In Camp 4, however, detainees are housed in open bays, not
cells, and have unrestricted access to their personal bins.

With respect to a number of the bins belonging to detainees who were in Camp 4 at the

time of the May 18, 2006 disturbance in the camp, it should be noted that during the melee
between the detainees and guard personnel, a number of detainee bins were disrupted and their
contents scattered. During clean-up after the incident by Guantanamo personnel, materials,
including some legal materials, were found to have been contaminated with biologically
hazardous matter, such as feces and bodily fluids, that were used by detainees in the attack on the
guards. These contaminated materials were destroyed for health and safety reasons. Also, a
number of the scattered legal materials were not readily identifiable as pertaining to a particular
detainee such that they could be returned to a detainee’s bin.

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Case 1:05-cv-01429-UNA Document 41 Filed 07/07/2006 Page 15 of 32

written in languages other than English. Id. ¶¶ 4-5. The materials collected from each detainees’

cell and effects were separately bagged for eventual sorting and review. Id. ¶ 4. Once the

materials were gathered, on June 18, 2006, NCIS personnel began sorting materials from bags

See Revised Procedures for Counsel Access to Detainees at the U.S. Naval Base in

Guantanamo Bay, Cuba, § I (annexed to the Protective Order as Exhibit A) (“Access
Procedures”). The Access Procedures permit privileged counsel visits and privileged “legal
mail” between counsel and a represented petitioner for purposes of litigating these cases, where
“legal mail” is defined as

Letters written between counsel and a detainee that are related to the counsel’s
representation of the detainee, as well as privileged documents and publicly filed
legal documents relating to that representation.

Id. § II.E. In several of the Guantanamo cases, however, the parties have agreed to revisions to
the Access Procedures that contemplate substantive review by a DoD privilege team, and
potentially other JTF-Guantanamo personnel, of articles and publications intended to be provided
by counsel to detainees. See Stipulation and Order filed May 3, 2006 in Al Joudi v. Bush, No.
05-CV-301 (GK); Al Oshan v. Bush, No. 05-520 (RMU); Al Subaiy v. Bush, No. 05-CV-1453
(RMU); Al Shareef v. Bush, No. 05-2458 (RWR).

Counsel, however, are not permitted to share classified information or information

designated by the Government as “protected information” with detainees. See Protective Order
¶¶ 30, 39. Further, neither counsel nor detainees are permitted to use the privileged mail system
for non-legal mail or communications, including communications to/from detainees from/to
others besides their counsel; the Access Procedures contemplate and require that non-legal
communications be routed through the normal mail process at Guantanamo Bay, which includes
content screening maintained for national security, intelligence, and physical and personnel
security purposes. See Access Procedures § IV.B.4.-5. (counsel may not use legal mail channels

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Case 1:05-cv-01429-UNA Document 41 Filed 07/07/2006 Page 18 of 32

by a “Filter Team.” The Filter Team will be composed of individuals meeting the qualifications

of the DoD “Privilege Team” created by the Protective Order, that is, they will be DoD

9

“attorney[s], intelligence, or law enforcement personnel [or translators] who have not taken part

in, and, in the future, will not take part in, any domestic or foreign court, military commission or

present, it is anticipated that the Filter Team will be composed of Navy JAG attorneys assisted by

DoD translators as necessary, but, again, only those who have not taken part in and will not take

part in litigation and other proceedings pertaining to the detainees. It is anticipated that the Filter

Team will disclose to NCIS investigators any documents it discovers that would be relevant to

the NCIS investigation, while documents determined not to be relevant to the investigation will

as conduit for non-legal mail; non-legal mail subject to review by military); see also id. § VI.C.
(messages to others besides counsel to be processed as non-legal mail); § IV.A.5. (non-legal mail
communications to detainees to be sent to detainee through normal, non-privileged mail
channels). Furthermore, counsel are required to disclose to the Government any information
learned from a detainee involving future events that threaten national security or involve
imminent violence. Id. § IX.C.

9

In recognition of the unique, wartime setting of these cases and detentions, including
that information possessed by detainees could have national security or physical and personnel
security implications warranting potential treatment of the information as classified information,
the Access Procedures require that communications from detainees and information learned from
them be treated as presumptively classified. See Access Procedures §§ III.A., IV.A.6., VI.
Counsel, however, may submit such materials to the DoD Privilege Team for review to
determine its classification. See Access Procedures §§ IV.A.6., VII. The Privilege Team is “[a]
team comprised of one or more DoD attorneys and one or more intelligence or law enforcement
personnel who have not taken part in, and, in the future, will not take part in, any domestic or
foreign court, military commission or combatant status tribunal proceedings involving the
detainee.” Id. § II.D. Absent Court authorization or the consent of counsel submitting the
information to the Privilege Team, the Privilege Team cannot disclose to anyone information
learned from their review activities, except that the Privilege Team may disclose information
indicating an “immediate and substantial harm to national security” or “imminent acts of
violence” to officials with a role in responding to such potential harms or violence. See id.
§ VII. A., D.-F.

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Case 1:05-cv-01429-UNA Document 41 Filed 07/07/2006 Page 19 of 32

be returned, either to the detainee if privileged attorney-client communication or, otherwise, to

JTF-Guantanamo for appropriate action.

With respect to attorney-client communications potentially subject to privilege, the Court

should authorize review of such materials by the Filter Team. To the extent that documents are

determined upon such review to be relevant to the NCIS investigation, the Filter Team would

seek Court permission for disclosure of the documents to the NCIS investigators; in such

proceedings, the applicability of the attorney-client privilege, and any applicable exception, could

be considered and addressed by the Court. Documents determined not to be relevant to the NCIS

investigation would be returned to the detainee concerned.
10

This protocol, however, should be

without prejudice to the Filter Team disclosing the material without such notice in appropriate

circumstances, e.g., when the information pertains to future events that threaten national security

or involve imminent violence, situations in which the current Access Procedures already

contemplate and require disclosure of the relevant information to JTF-Guantanamo. See Access

It is further contemplated that because the applicable Protective Order and Access

Procedures prohibit habeas counsel from sharing of certain types of materials with detainees –
see supra note 8 (counsel may neither share classified or protected materials with detainees nor
deliver communications between detainees and others through legal mail channels); see also
Access Procedures §§ IV.A.7, V.B. (counsel prohibited from providing detainees information
relating to “ongoing or completed military, intelligence, security, or law enforcement operations,
investigations, or arrests, or the results of such activities, by any nation or agency or current
political events in any country that are not directly related to counsel’s representation of that
detainee; or security procedures at GTMO (including names of U.S. Government personnel and
the layout of camp facilities) or the status of other detainees, not directly related to counsel’s
representation”) – if such prohibited materials are discovered in the course of review, the Filter
Team would not be constrained from bringing the matter to the Court’s attention for appropriate
action. See Protective Order ¶ 49 (violations of Protective Order to be brought to Court’s
attention); cf. id. ¶ 28 (Court Security Officers to report violations of Protective Order
discovered in administration of secure facility for habeas counsel).

Because the review by the Filter Team may require the Filter Team to raise disclosure of

specific attorney-client communications with the Court, it is necessary that the Court also

authorize a Filter Litigation Team to represent the Filter Team in such matters. The Filter Team,

comprising DoD employees, cannot appear in court on its own to represent itself, see 28 U.S.C.

§ 516,
11

and it obviously could not share potentially privileged information learned during its

review with current litigation counsel for respondents – even for the purpose of permitting

current litigation counsel to defend or represent the Filter Team. The Filter Team should be

permitted to disclose potentially privileged or protected information to the Filter Litigation Team,

which would operate under the same type of constraints on disclosure of the information as the

Filter Team. Similarly, because of the Filter Litigation Team’s access to potentially privileged

information, the Filter Litigation Team would be composed of Department of Justice attorneys

who would be prohibited from participating in litigation on the merits of the habeas petitions of

Guantanamo Bay detainees or other cases brought by or against the petitioners.

A proposed order regarding the matters and procedures set out above for which Court

authorization or approval is appropriate is submitted herewith. Review of the impounded

documents awaits the Court’s consideration of this motion.

11

28 U.S.C. § 516 provides:

Except as otherwise authorized by law, the conduct of litigation in which

the United States, an agency, or officer thereof is a party, or is interested, and
securing evidence therefor, is reserved to officers of the Department of Justice,
under the direction of the Attorney General.

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Case 1:05-cv-01429-UNA Document 41 Filed 07/07/2006 Page 21 of 32

ARGUMENT

The legitimacy of and need for the temporary impoundment and review of detainee

papers in the course of the NCIS investigation cannot be gainsaid in the current context. Three

detainees have committed suicide, with two others having attempted to do so in the preceding

weeks. Detainees in Camp 4 were able to launch a coordinated ambush attack on guards there.

The three successful suicides occurred on the same day, in essentially the same manner, and

evidence exists that the deceased detainees had secreted suicide notes between themselves and at

least one other living detainee. In addition, a note providing instructions concerning the tying of

knots has been uncovered among detainee documents, along with a potentially classified e-mail

from a camp officer somehow provided a detainee. Importantly, several of the suicide notes and

other documents were written or contained on paper bearing an attorney-client confidentiality

stamp, indicating, at the very least, that detainees are (mis)using materials on their face reserved

for privileged legal communications for purposes other than such communications. No doubt

this practice was developed in an attempt to shield those improper communications or writings

and others like them from the suspicion of guard force personnel or from scrutiny by those

personnel because guards have not been permitted to review or interfere with attorney-client

communications between detainees and counsel. Further, detainees apparently have developed

some means of obtaining documents like the JTF-Guantanamo e-mail found in the sample

sorting of detainee documents.

The Supreme Court has long recognized, even in the context of the detention of U.S.

individuals possessing constitutional rights, that prison officials must be permitted to take all

reasonable steps to mitigate and address potential threats to the security of detention facilities and

the safety of personnel and detainees in those facilities, including with respect to searches of